The Legal Position of the Operator and the Repairer in
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Cases in which an Accident Occurs Through a Defect in a Vehicle
THE recent Scottish case of Donnelly and Others v. Glasgow Corporation drew attention to the important question of liability for damage arising out of structural defects of a public service vehicle, as opposed
to faulty maintenance. When considering this topic, one can also consider the duty owed to persons other than passengers; every employer owes a duty to his employees to provide them with adequate equipment. .
As in most legal problems, both the question and answer are • best illustrated by actual examples from decisions in the courts. One can, however, certainly lay down the following general rule:--Where 'an accident
is caused through a. patent defect, that is, something Which must or
should have been obvious from even the most cursory examination of the vehicle in question, the owner of the vehicle will be liable in negligence.
Where, however, the. defect is of a latent nature, the question is not so
simple, and it will be further complicated where the owrier is in the habit of having the vehicle
maintained and repaired by independent contractors. In one case, the owner of a lorry took a wheel,
the flange of which had come off, to a garage with instructions to reassemble it. This was done, the wheel replaced and the lorry owner's servant came and drove it away. An hour or two later the flange came off and caused an accident. There was no evidence that anything had occurred since the replacing of the Wheel to cause it to become dislodged.
It was held that the owner could not be liable for negligence as he had entrusted the repair to a competent repairer; that neither the owner nor the driver was under a duty to ascertain for himself whether the repair had in • fact been competently done, and that the repairer was • liable to the persons injured by the 'accident. .
It follows from this case that where a person goes to a reputedly competent repairer for maintenance or repairs to his vehicle, and that damage is caused (through a latent defect because of the repairers' • negligence) within a period after the completion of those repairs sufficiently short so that no further examination is caned for, it is the repairer who is liable and not the owner of the vehicle. What, then, is the repairer's position where he has merely used a manufacturer's proprietary article in his repair work and it is this article which gives way?
In such an event, the blanNe will be carried one stage further back in the chain and the manufacturer himself will be liable, provided that the defect in question was of a latent nature. If it was not, but could have been discovered by any reasonable examination by the . repairer, the manufacturer is exonerated and liability .rests with the repairer who made use of the defective .article or material.
By Our
This is known in law as the "possibility of intermediate examination". Where damage results from some sort of defect in the nature of an article, the question of whether the person so injured has any remedy against the original maker Of the article will always depend on whether there has been this chance of an intermediate examination which would have disclosed the defect.
• In Donnelly and Others v. Glasgow Corporation, a bus ovtrturned because of a broken front spring. , The local
authority which owned the bus sought to rely on two defences. when sued, the second of which at least had the merit of being unusual although it not destined to succeed. First, they blamed the manufacturers of the spring on the ground that two usual and normal safety devices had been omitted. They acknowledged the defect, but said that as it was one of deign they had satisfied whatever duty Iay upon them by purchasing the vehicle from reputable manufacturers.
Secondly, they pleaded that they were not liable on the ground that a certificate of 'fitness, issued by the Ministry of Transport, relieved them from any duty they might otherwise have been under in respect of the adequacy or sufficiency of the vehicle's design.
The Court of Session rejected both these lines of defence. The Court held that the defect was clearly one which could have been observed by an examination of the vehicle by the local authority's own maintenance
Legal Adviser staff, and therefore the "chain of
causation" had been broken by the possibility of an intermediate examination. Moreover, they could not shelter behind the certificate of fitness when they were in breach of their duty.
This brings us to a consideration of an employer's duty towards his servants to provide safe plant and equipment. In this case, both the driver and conductor of the bus had been injured and they sued their employers. It should be realized that an employer is under a general duty to provide his employees with safe machinery and equipment as an implied term of his . contract with them—quite apart from any special duties or requirements imposed upon him by statute or regulation.
Most employers know—if they are wise—that such legislation as the Factories Act, 1937, provides almost a complete code of duties, applicable to many industries and trades, towards employees as regards their health, general welfare, and, above all, their safety. But they would be greatly mistaken if they assumed that the sum total of their responsibility was to be found in this and similar statutes. Apart altogether from these, there is a general duty towards every employee, inherent in his contract of service, to provide him with as safe and efficient materials and equipment as are reasonably practicable.
Wherever an employer fails in this duty and the employee is injured as a result, he will be entitled to damages. It may be mentioned that the principle was applied in the past to an employee who had a car, provided for his use as a traveller, which had a faulty starting handle and because of which his wrist was broken. From such simple beginnings are principles of liability extended, and the ingenious arguments advanced by the defendants in Donnelly's case could not result in the shifting of the undoubted duty owed to their employees: The certificate of fitness issued by the Ministry could not—and should not—affect what is both a contractual and a moral duty between an employer and his employee.
[Because of the Glasgow accident, a regulation is to be made requiring that every public service vehicle shall be constructed or adapted so that failure of Xhe suspensjon system will not cause the driver to lose directional control,)